Ontario (Attorney General) v. G

Supreme Court of Canada

2020 SCC 38

Appeal Heard: February 20, 2020 | Judgment Rendered: November 20, 2020 | Docket: 38585

Between:

Attorney General of Ontario — Appellant

and

G — Respondent

— and —

Attorney General of Canada, Criminal Lawyers' Association (Ontario), Canadian Civil Liberties Association, David Asper Centre for Constitutional Rights, Empowerment Council and Canadian Mental Health Association, Ontario — Interveners

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 184) — Karakatsanis J. (Wagner C.J. and Abella, Moldaver, Martin and Kasirer JJ. concurring)

Concurring Reasons: (paras. 185 to 217) — Rowe J.

Joint Reasons Dissenting in Part: (paras. 218 to 294) — Côté and Brown JJ.

Indexed as: Ontario (Attorney General) v. G

File No.: 38585.

2020: February 20; 2020: November 20.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

on appeal from the court of appeal for ontario

Constitutional law — Charter of Rights — Right to equality — Discrimination based on mental or physical disability — Ontario's sex offender registry regime requiring that individuals either convicted or found not criminally responsible on account of mental disorder ("NCRMD") of sexual offences have their personal information added to registry and report to police station at least once a year to keep information up to date — Opportunities for exemption from requirements available to individuals found guilty of sexual offences but not to those found NCRMD who have been granted absolute discharge — Whether provincial sex offender registry regime infringes right to equality of such NCRMD individuals — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1, 15(1) — Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1.

Constitutional law — Remedy — Declaration of invalidity — Suspension of declaration of invalidity — Individual exemption from suspension — Applicant seeking declaration that Ontario's sex offender registry regime infringes right to equality of NCRMD individuals who have been granted absolute discharge — Court of Appeal granting declaration of invalidity, suspending declaration for 12 months and exempting applicant from suspension — Proper approach to determining remedy for unconstitutional legislation — Canadian Charter of Rights and Freedoms, s. 24(1) — Constitution Act, 1982, s. 52(1).

In Ontario, Christopher's Law requires those who are either convicted or found not criminally responsible on account of mental disorder ("NCRMD") of a sexual offence to physically report to a police station to have their personal information added to the province's sex offender registry. Registrants must continue to report in person at least once a year and every time certain information changes. Registrants must comply for 10 years if the maximum sentence for the sexual offence they committed is 10 years or less, or for life, if the maximum sentence is greater than 10 years or if they committed more than one sexual offence. There is some opportunity, based on an individualized assessment, for those found guilty of sexual offences to be removed or exempted from the registry or relieved of their reporting obligations. By contrast, no one found NCRMD of sexual offences can ever be removed from the registry or exempted from reporting, even if they have received an absolute discharge from a review board.

In June 2002, G was found NCRMD of two sexual offences. In August 2003, he was absolutely discharged by the Ontario Review Board on the basis that he no longer represented a significant risk to the safety of the public. Despite this discharge, G was placed on the provincial sex offender registry in August 2004, as required by Christopher's Law. G brought an application challenging Christopher's Law as it applies to persons found NCRMD in respect of sexual offences who have been absolutely discharged. He argued that the inability of people in his situation to be granted an exemption or be removed from the provincial registry or relieved of reporting requirements, as compared to those found guilty of the same offences, violates ss. 7 and 15(1) of the Charter.

The application judge dismissed G's application, but the Court of Appeal allowed G's appeal on the basis of his s. 15(1) claim, and concluded that the s. 15(1) breach was not justified under s. 1 of the Charter. It declared Christopher's Law to be of no force or effect as it applies to those found NCRMD who were granted an absolute discharge, suspended the declaration of invalidity for 12 months, and exempted G from that suspension by relieving him of further compliance with the legislation and ordering that his information be deleted from the registry immediately. The Attorney General of Ontario appealed to the Court.

Held (Côté and Brown JJ. dissenting in part): The appeal should be dismissed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: Christopher's Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter. These discriminatory distinctions cannot be justified in a free and democratic society. The remedy granted by the Court of Appeal was appropriate, and its orders should be upheld.

The first step in determining whether a law infringes s. 15(1) of the Charter asks whether the law, on its face or in its impact, creates a distinction based on enumerated or analogous grounds. In the present case, there are clear distinctions drawn based on the enumerated ground of mental disability. Offenders found guilty of sexual offences can be exempted from having to report and register in the first place by receiving a discharge in their sentencing hearing. Convicted registrants can also be removed from the sex offender registry by receiving a free pardon, and can be relieved of the obligation to continue to report upon receipt of a free pardon or record suspension. However, those found NCRMD of the same offences have no such opportunities, even if they have received an absolute discharge. NCRMD individuals are plainly subjected to different treatment.

The second step asks whether the challenged law imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage, including historical disadvantage. By denying those found NCRMD opportunities for exemption, removal, or relief from the sex offender registry, Christopher's Law effectively presumes that they are inherently and permanently dangerous. It considers NCRMD individuals a perpetual threat to the public. Christopher's Law imposes a burden on people found NCRMD in a manner that violates s. 15(1) in two respects: the law itself invokes prejudicial and stereotypical views about persons with mental illnesses; and the law puts those found NCRMD in a worse position than those found guilty. Both effects perpetuate the historical and enduring disadvantage experienced by persons with mental illnesses. The distinctions drawn by Christopher's Law are thus discriminatory.

The burden of establishing that the infringement of s. 15(1) is justified under s. 1 of the Charter belongs to the Attorney General, on a balance of probabilities. First, there must be a pressing and substantial objective for the infringing measure. Second, the infringing measure must not disproportionately interfere with the s. 15(1) right; it must be rationally connected to the objective, the means chosen must interfere as little as possible with the s. 15(1) right, and the benefits of the infringing measure must outweigh its negative effects. In the present case, the parties agree that the purpose of Christopher's Law is to assist in the investigation and prevention of sexual offences, that this purpose is pressing and substantial, and that the limits it places on Charter rights are rationally connected to that purpose. However, Christopher's Law is not minimally impairing of the s. 15(1) rights of NCRMD individuals. The inclusion of any method of exempting and removing those found NCRMD from the registry based on individualized assessment would be less impairing. Thus, the Attorney General has not justified the s. 15(1) infringement.

The determination of appropriate remedies for legislation that violates the Charter must follow a principled approach. Section 52(1) of the Constitution Act, 1982, provides in absolute terms that laws inconsistent with the Constitution are of no force or effect to the extent of the inconsistency. A general declaration is the means by which courts give full effect to the broad terms of s. 52(1). A court faced with a constitutional challenge to a law must determine to what extent it is unconstitutional and declare it to be so. A measure of discretion is inevitable in determining how to respond to an inconsistency between legislation and the Constitution. While s. 52(1) recognizes the primacy of the Constitution, including the fundamental rights and freedoms of individuals and groups guaranteed by the Charter, fashioning constitutional remedies inevitably implicates other — at times competing — constitutional principles. Courts must strike an appropriate balance between these principles in determining how to give effect to s. 52(1) in a manner that best aligns with Canada's constitutional order.

The Court's leading decision on remedies for laws that violate the Charter, Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679, provides helpful guidance on how to craft a responsive and effective remedy for unconstitutional laws. Schachter set out a general approach to granting remedies. It endorsed remedies tailored to the breadth of rights violations, thereby allowing constitutionally compliant aspects of unconstitutional legislation to be preserved, and recognized that, in rare circumstances, the effect of a declaration of invalidity could be suspended for a period of time to protect the public interest. Schachter also considered how s. 52(1) remedies can be combined with individual remedies for Charter violations, including whether the claimant should receive an individual exemption from a suspension, thereby ensuring that successful claimants can enjoy the immediate benefit of a declaration of invalidity.

By employing and building on Schachter's guidance in determining the form and breadth of declarations of invalidity, suspending the effect of those declarations, and exempting individuals from suspensions, the Court's jurisprudence has coalesced around a group of core remedial principles that structure the exercise of principled remedial discretion and provide the groundwork for meaningful remedies in different contexts. First, safeguarding rights lies at the core of granting Charter remedies because the Charter exists to protect rights, freedoms, and inherent dignity. Second, the public has an interest in legislation that is constitutionally compliant. Third, the public is entitled to the benefit of legislation, which individuals rely upon to organize their lives and protect them from harm. Fourth, courts and legislatures play different institutional roles: the legislature is sovereign in the sense that it has exclusive authority to enact, amend, and repeal any law as it sees fit, while courts remain guardians of the Constitution and of individuals' rights under it. These principles provide guidance to courts and encourage them to transparently explain remedial results.

As the language of s. 52(1) directs, the first step in crafting an appropriate remedy is determining the extent of the legislation's inconsistency with the Constitution. The nature and extent of the Charter violation lays the foundation for the remedial analysis because the breadth of the remedy ultimately granted will reflect at least the extent of the breach. The second step is determining the form that a declaration should take. Remedies other than full declarations of invalidity should be granted when the nature of the violation and the intention of the legislature allows for them. However, if granted in the wrong circumstances, tailored remedies can intrude on the legislative sphere. To respect the differing roles of courts and legislatures, determining whether to strike down legislation in its entirety or to grant a tailored remedy of reading in, reading down, or severance, depends on whether the legislature's intention was such that it would have enacted the law as modified by the court.

When an immediately effective declaration of invalidity would endanger an interest of such great importance that, on balance, the benefits of delaying the effect of that declaration outweigh the cost of preserving an unconstitutional law, the court may suspend the effect of the declaration. The power to suspend the effect of a declaration of invalidity arises from accommodation of broader constitutional considerations and is included in the power to declare legislation invalid. Suspensions of declarations of invalidity should be rare; the effect of a declaration should not be suspended unless the government demonstrates that an immediately effective declaration would endanger a compelling public interest that outweighs the importance of immediate constitutional compliance and an immediately effective remedy for those whose Charter rights will be violated. The period of suspension, where warranted, should be long enough to give the legislature the amount of time it requires to carry out its responsibility diligently and effectively, while recognizing that every additional day of rights violations will be a strong counterweight against giving the legislature more time.

When the effect of a declaration of invalidity is suspended, an individual remedy for the claimant under s. 24(1) of the Charter in the form of an individual exemption from the suspension will often be appropriate and just. A s. 24(1) remedy should meaningfully vindicate the right of the claimant, conform to the separation of powers, invoke the powers and function of a court, be fair to the party against whom the remedy is ordered, and allow s. 24(1) to evolve to meet the challenges of each case. A court's approach to s. 24(1) remedies must stay flexible and responsive to the needs of a given case. The public is well served by encouraging litigation that furthers the public interest by uncovering unconstitutional laws, and claimants invest time and resources to pursue matters in the public interest. Thus, if an exemption is otherwise appropriate and just, claimants should be exempted from suspensions in the absence of compelling reasons not to.

In the present case, the declaration of invalidity was properly limited to those who have been found NCRMD of a sexual offence and absolutely discharged. A tailored remedy was clearly appropriate here, since granting such a remedy better protects the public's interest in legislation enacted for its benefit, like Christopher's Law, and better respects the role of the legislature while also safeguarding Charter rights and realizing the public's interest in constitutionally compliant legislation.

The declaration of invalidity was also properly suspended for a 12-month period. Although the terms of s. 52(1) and the need to safeguard Charter rights and ensure constitutional compliance of all legislation weigh heavily in favour of an immediately effective declaration, those factors must be balanced against protecting the public's interest in legislation passed for its benefit. To do so requires considering the nature and extent of both the continued rights violations and the danger to an identified public interest that could flow from an immediate declaration of invalidity.

In the instant case, public safety has been identified as the public interest that justifies a suspension. NCRMD persons are at a statistically higher risk of offending than the general population. Granting an immediate declaration would therefore endanger the public interest in safety to some extent. The registry contributes to public safety by enhancing the ability of police to prevent and investigate sexual offences. Immediately relieving people who may pose some risk of committing sexual offences from the obligation to report or permitting them to seek removal of their information could detract from this enhanced ability. The threat to public safety is therefore meaningful. However, given that persons found NCRMD who pose the highest demonstrable risk to reoffend are not given absolute discharges, this threat is limited. The other public interest at stake is respect for the legislature: granting an immediate declaration of invalidity could risk compromising the legislature's ability to fulfil its role and restrict the effectiveness of whatever new version of Christopher's Law is eventually enacted. Balanced against these considerations is the significance of the rights violation that the suspension would temporarily prolong: Christopher's Law treats those found NCRMD in accordance with a persistent, demeaning stereotype without providing an opportunity to determine whether they pose sufficient risk. On balance, the combination of these two interests justifies temporarily depriving those affected of the immediate benefit of the declaration.

Finally, the exercise of the Court of Appeal's discretion in granting G an individual exemption from the suspension deserves deference. G's record since his release 17 years ago has been spotless and there is no indication that he poses a risk to public safety. An exemption ensures that G receives an effective remedy and is not denied the benefit of his success on the constitutional merits.

Per Rowe J.: The appeal should be dismissed. There is agreement with Côté and Brown JJ. regarding s. 15(1) of the Charter, and regarding the general approach to ordering an individual exemption under s. 24(1) from the suspended effect of a declaration of invalidity under s. 52(1) of the Constitution Act, 1982. However, there is disagreement on the proper approach to suspending a declaration of invalidity under s. 52(1). The Court's approach in Schachter should be reaffirmed.

The majority's principled discretion approach to suspended declarations of invalidity lacks analytic structure, and its four principles are so indeterminate and truistic as to provide no meaningful guidance. This discretionary approach could lead to a continuation of current trends in which declarations of invalidity are suspended in a way that varies with the length of the Chancellor's foot. There is no legitimate basis to read remedial discretion into s. 52(1). The absence of remedial discretion in s. 52(1) is not an oversight, and the inherent jurisdiction of a court is not a sound or sufficient legal basis to depart from the immediate effect of s. 52(1). The only basis on which a court can order a constitutionally invalid statute to be enforced notwithstanding its illegality is if an immediate declaration of invalidity would offend some other constitutional principle.

Schachter is grounded in a view that suspended declarations are exceptional and should be ordered only where: (1) an immediate declaration of invalidity would pose a potential danger to the public; (2) it would otherwise threaten the rule of law; or (3) the impugned law is underinclusive and the court cannot determine properly whether to cancel or extend its benefits. These categories exemplify circumstances in which countervailing constitutional principles constitute a valid basis to suspend an immediate declaration of invalidity. While not exhaustive, the Schachter categories should be extended only where an immediate declaration would infringe some constitutional principle.

In the case at bar, the declaration of invalidity was suspended on the basis of public safety concerns. However, as the 12-month suspension of the declaration of invalidity ordered by the Court of Appeal has expired, this issue is now moot, as is the issue of the individual exemption order for G. Consequently, there is no cause to decide whether the declaration was properly suspended, or whether the individual exemption was rightly ordered.

Per Côté and Brown JJ. (dissenting in part): There is agreement with the majority that Christopher's Law infringes G's s. 15(1) Charter right to equal treatment, and that the declaration of invalidity was properly suspended for a period of 12 months. However, the suspension of the declaration of invalidity should be grounded solely on the threat to the rule of law that would otherwise manifest, in the present case, in the form of a threat to public safety. Consistent with the limited role of the judiciary vis-à-vis the legislature, an individual exemption from the suspended declaration of invalidity should not be granted. The appeal should therefore be allowed in part.

The section 15(1) issue is easily disposed of. Christopher's Law draws a distinction between persons found NCRMD and persons found guilty. That distinction exacerbates pre-existing disadvantage by perpetuating the stereotype that persons with mental illness are inherently dangerous. Persons found guilty of sexual offences have several exit ramps leading away from the obligation to comply with Christopher's Law but persons found NCRMD do not, even where the Ontario Review Board determines that they no longer pose a significant threat to public safety and grants them an absolute discharge. This constitutes differential treatment on the basis of an enumerated ground: mental disability. The proper remedy is to require the legislature to provide persons found NCRMD who have been absolutely discharged with an opportunity for exemption and removal from the Christopher's Law registry.

Suspended declarations of invalidity are only warranted when there is a threat to the rule of law, for three principal reasons. First, this was what the Court envisioned in assuming for the first time the power to issue a suspended declaration in Reference re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721. The Court in Manitoba Reference tightly constrained the use of suspended declarations to situations where they are necessary to preserve the rule of law under conditions of emergency, when it is impossible to comply with constitutional rights. Since Manitoba Reference, however, the Court has lost its way and has suspended declarations of invalidity almost as a matter of course, often with no justification or attention to the rule of law.

Secondly, the Constitution contemplates immediate declarations as the norm, subject only to a rule of law concern. Once it is found that a statute is inconsistent with the Constitution, s. 52(1) limits the role of courts to declaring a law is of no force or effect. While the Constitution does not expressly permit courts to suspend a declaration of invalidity, it does provide a means for Parliament and legislatures to do so in certain cases under s. 33(1). Courts must therefore be judicious, measured and principled when exercising the judicially created power to suspend a declaration of invalidity. Rights under the Charter may be temporarily judicially displaced by the operation of a suspended declaration of invalidity only where necessary to preserve the rule of law and to ensure its continuity. In such instances, courts are not fulfilling an impermissible legislative role as they otherwise would be by granting a suspended declaration, but an assuredly judicial role.

Thirdly, lessons that follow from Schachter's jurisprudential progeny show why it is essential to confine judicial discretion. Restraint is imperative because suspending a declaration will often pull a court beyond its institutional competence and capacity, and into the role of the legislature. As well, courts are ill-equipped to determine the period of time during which a suspended declaration should govern. Further, allowing an unconstitutional law to remain in force not only withholds the immediate relief to which a successful claimant is expressly entitled under s. 52(1), but also sustains the invalidated law's capacity to produce harm. Finally, suspended declarations can exacerbate pre-existing disadvantage and discourage rights holders from bringing Charter claims forward in the first place.

If used improperly, suspended declarations can undermine the rule of law they were meant to preserve in two ways: they can lead to uncertainty in the law during the period of suspension; and they can lessen the consequences for lawmakers of enacting laws that violate the Charter, which in turn, reduces the incentives for complying with rights when making law.

In the present case, granting an immediate declaration of invalidity would threaten public safety and, therefore, the rule of law, as it would mean that the Christopher's Law registry would not apply to all persons found NCRMD and who have been granted absolute discharges by the Ontario Review Board. While Christopher's Law likely captures persons who do not pose a significant risk of reoffending, it also captures many who do. More importantly, it must be remembered that the recidivism risk is that of committing sexual offences, which are violent crimes that cause profound harm to the most vulnerable members of society. Given that an immediate declaration of invalidity would remove persons found NCRMD who are potentially dangerous from the registry, it would create a lacuna in the regime that would undoubtedly pose a danger to the public and thus threaten the rule of law.

If a suspended declaration of invalidity should be rare, then an individual exemption from that suspension must be exceedingly so. There is disagreement with the majority that judges are well-suited to conduct an individualized assessment as to whether an exemption would endanger public safety. Rather, a helpful consideration in determining whether an individual exemption should be granted is to ask whether an exemption is necessary to prevent irreparable harm to the interests the Charter was designed to protect during the suspension. The case for irreparable harm must be so significant that it overcomes the weighty need to leave the manner of addressing a constitutional infringement to the legislature.

Although G has shown that he is entitled to the opportunity for exemption and removal from the registry, this is not one of those rare cases where an individual exemption is warranted. A delayed remedy will not deprive G of an effective one, nor preclude him from accessing the new opportunity for exemption in whatever form that may take. Further, G will, at most, have to report to the police station one more time as part of his obligation to report annually, a far cry from irreparable harm. In G's case, as in most, crafting an individual exemption will exceed the competence of the Court and encroach on what is an issue for resolution by the legislature, which is in a far better position to determine what the appropriate mechanism is to provide persons found NCRMD with the opportunity for exemption.

Granting G an individual exemption also raises concerns of horizontal unfairness — that is, of treating G better than others who are similarly situated. In a constitutional case involving the validity of a statute of general applicability, a litigant should not be entitled to a better or more immediate constitutional remedy than all other persons similarly situated merely because they brought the case.

Cases Cited

By Karakatsanis J.

Discussed: Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679; considered: R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933; Reference re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721; referred to: R. v. Dyck, 2008 ONCA 309, 90 O.R. (3d) 409; R. v. Long, 2018 ONCA 282, 45 C.R. (7th) 98; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621; Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497; Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624; Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113; Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513; R. v. Campbell, 2013 BCCA 43, 334 B.C.A.C. 16; R. v. C.C., 2007 ABPC 337, 435 A.R. 215; R. v. Redhead, 2006 ABCA 84, 384 A.R. 206; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; R. v. Ndhlovu, 2020 ABCA 307; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; Canadian Egg Marketing Agency v. Richardson, 1997 17020 (SCC), [1998] 3 S.C.R. 157; Osborne v. Canada (Treasury Board), 1991 60 (SCC), [1991] 2 S.C.R. 69; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524; Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 79 (SCC), [1987] 1 S.C.R. 110; Harper v. Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764; Reference re pan-Canadian securities regulation, 2018 SCC 48, [2018] 3 S.C.R. 189; Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Barabash, 2015 SCC 29, [2015] 2 S.C.R. 522; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; R. v. Rajaratnam, 2019 BCCA 209, 376 C.C.C. (3d) 181; R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; Ramsden v. Peterborough (City), 1993 60 (SCC), [1993] 2 S.C.R. 1084; R. v. Généreux, 1992 117 (SCC), [1992] 1 S.C.R. 259; R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 317 (SCC), [1997] 3 S.C.R. 3; Benner v. Canada (Secretary of State), 1997 376 (SCC), [1997] 1 S.C.R. 358; Miron v. Trudel, 1995 97 (SCC), [1995] 2 S.C.R. 418; R. v. Laba, 1994 41 (SCC), [1994] 3 S.C.R. 965; R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223; R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711; R. v. Hess, 1990 89 (SCC), [1990] 2 S.C.R. 906; Attorney General of Quebec v. Quebec Association of Protestant School Boards, 1984 32 (SCC), [1984] 2 S.C.R. 66; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116; Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, [2016] 1 S.C.R. 336; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; Quebec (Education, Recreation and Sports) v. Nguyen, 2009 SCC 47, [2009] 3 S.C.R. 208; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489; Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912; Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835; Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; R. v. Guignard, 2002 SCC 14, [2002] 1 S.C.R. 472; U.F.C.W., Local 1518 v. KMart Canada Ltd., 1999 650 (SCC), [1999] 2 S.C.R. 1083; M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3; Thomson Newspapers Co. v. Canada (Attorney General), 1998 829 (SCC), [1998] 1 S.C.R. 877; Libman v. Quebec (Attorney General), 1997 326 (SCC), [1997] 3 S.C.R. 569; R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761; Sauvé v. Canada (Attorney General), 1993 92 (SCC), [1993] 2 S.C.R. 438; Kourtessis v. M.N.R., 1993 137 (SCC), [1993] 2 S.C.R. 53; R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731; R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91; R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154; R. v. Sit, 1991 34 (SCC), [1991] 3 S.C.R. 124; R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 12 (SCC), [1991] 2 S.C.R. 22; Committee for the Commonwealth of Canada v. Canada, 1991 119 (SCC), [1991] 1 S.C.R. 139; R. v. Arkell, 1990 82 (SCC), [1990] 2 S.C.R. 695; R. v. Martineau, 1990 80 (SCC), [1990] 2 S.C.R. 633; Rocket v. Royal College of Dental Surgeons of Ontario, 1990 121 (SCC), [1990] 2 S.C.R. 232; Mahe v. Alberta, 1990 133 (SCC), [1990] 1 S.C.R. 342; Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S.C.R. 1326; Black v. Law Society of Alberta, 1989 132 (SCC), [1989] 1 S.C.R. 591; Ford v. Quebec (Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712; Devine v. Quebec (Attorney General), 1988 20 (SCC), [1988] 2 S.C.R. 790; Corporation professionnelle des médecins du Québec v. Thibault, 1988 32 (SCC), [1988] 1 S.C.R. 1033; R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30; R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Air Canada v. British Columbia, 1989 95 (SCC), [1989] 1 S.C.R. 1161; R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; Carter v. Canada (Attorney General), 2016 SCC 4, [2016] 1 S.C.R. 13; Thorson v. Attorney General of Canada, 1974 6 (SCC), [1975] 1 S.C.R. 138; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 116 (SCC), [1992] 1 S.C.R. 236; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; R. v. Debidin, 2008 ONCA 868, 94 O.R. (3d) 421.

By Rowe J.

Applied: Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679; considered: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; referred to: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863; Reference re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721; R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933; R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711; Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401; Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Ontario (Attorney General) v. G, 2019 SCC 36, [2019] 2 S.C.R. 990.

By Côté and Brown JJ. (dissenting in part)

Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; Reference re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; U.F.C.W., Local 1518 v. KMart Canada Ltd., 1999 650 (SCC), [1999] 2 S.C.R. 1083; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; R. v. Guignard, 2002 SCC 14, [2002] 1 S.C.R. 472; Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835; Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912; Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116; R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733; R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; Quebec (Education, Recreation and Sports) v. Nguyen, 2009 SCC 47, [2009] 3 S.C.R. 208; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489; Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3; Thomson Newspapers Co. v. Canada (Attorney General), 1998 829 (SCC), [1998] 1 S.C.R. 877; Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624; Libman v. Quebec (Attorney General), 1997 326 (SCC), [1997] 3 S.C.R. 569; Benner v. Canada (Secretary of State), 1997 376 (SCC), [1997] 1 S.C.R. 358; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 317 (SCC), [1997] 3 S.C.R. 3; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199; R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761; Sauvé v. Canada (Attorney General), 1993 92 (SCC), [1993] 2 S.C.R. 438; Ramsden v. Peterborough (City), 1993 60 (SCC), [1993] 2 S.C.R. 1084; Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416; R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Roncarelli v. Duplessis, 1959 50 (SCC), [1959] S.C.R. 121; B.C.G.E.U. v. British Columbia (Attorney General), 1988 3 (SCC), [1988] 2 S.C.R. 214; Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 12 (SCC), [1991] 2 S.C.R. 22; R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Reference re Anti-Inflation Act, 1976 16 (SCC), [1976] 2 S.C.R. 373; Carter v. Canada (Attorney General), 2016 SCC 4, [2016] 1 S.C.R. 13; R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933; Ferguson v. Regional Mental Health Care St. Thomas, 2010 ONCA 810, 271 O.A.C. 104; Kassa (Re), 2019 ONCA 313; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Peckham (1994), 1994 3445 (ON CA), 93 C.C.C. (3d) 443; R. v. Redhead, 2006 ABCA 84, 384 A.R. 206; R. v. R.L., 2007 ONCA 347; R. v. Debidin, 2008 ONCA 868, 94 O.R. (3d) 421; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524; Miron v. Trudel, 1995 97 (SCC), [1995] 2 S.C.R. 418.

Statutes and Regulations Cited

Bill C-16, Sex Offender Information Registration Act, 3rd Sess., 37th Parl., 2004, s. 20.

Canadian Charter of Rights and Freedoms, preamble, ss. 1, 2, 3, 4, 7 to 15, 24(1), (2), 32(1), 33.

Christopher's Law (Sex Offender Registry), 2000, O. Reg. 69/01, ss. 1.2, 2.

Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1, ss. 1(1) "offender", "pardon", 2, 3, 4(2), 7(1)(a), (b), (c), (4), 8(1)(c), 9.1, 10(2), (3), 11.

Christopher's Law (Sex Offender Registry) Amendment Act, 2011, S.O. 2011, c. 8, ss. 1(1), 6.

Constitution Act, 1867, preamble, ss. 17, 40, 48, 55, 91 to 95.

Constitution Act, 1982, ss. 44, 45, 52(1).

Constitution of South Africa, s. 172(1)(a), (b).

Criminal Code, R.S.C. 1985, c. C-46, ss. 16(1), 490.012(4) [ad. 2004, c. 10, s. 20], 490.016(1), 490.023(2), Part XX.1, 672.1(1), 672.34, 672.35, 672.47, 672.54, 672.55, 672.81, 730, 748.

Criminal Records Act, R.S.C. 1985, c. C-47, ss. 4, 4.1.

Human Rights Act 1998 (U.K.), 1998, c. 42, s. 4(4), (6).

Police Services Act, R.S.O. 1990, c. P.15, s. 41(1.1), (1.2).

Protecting Victims from Sex Offenders Act, S.C. 2010, c. 17, s. 5.

Scotland Act, 1998 (U.K.), 1998, c. 46, ss. 102(2), (3).

Sex Offender Information Registration Act, S.C. 2004, c. 10.

Authors Cited

Barrett, Joan, and Riun Shandler. Mental Disorder in Canadian Criminal Law. Toronto: Thomson Reuters, 2019 (loose-leaf updated 2019, release 4).

Barnes, Elizabeth. The Minority Body: A Theory of Disability. Oxford: Oxford University Press, 2016.

Bird, Brian. "The Judicial Notwithstanding Clause: Suspended Declarations of Invalidity" (2019), 42 Man. L.J. 23.

Blakeney, Allan E. "The Notwithstanding Clause, the Charter, and Canada's Patriated Constitution: What I Thought We Were Doing" (2010), 19 Const. Forum 1.

Bracken, Patrick, and Philip Thomas. Postpsychiatry. Oxford: Oxford University Press, 2005.

Brammall, Brendan. "A Comment on Doucet-Boudreau v. Nova Scotia (Minister of Education) and R. v. Demers" (2006), 64 U.T. Fac. L. Rev. 113.

Burningham, Sarah. "A Comment on the Court's Decision to Suspend the Declaration of Invalidity in Carter v. Canada" (2015), 78 Sask. L. Rev. 201.

Canada. Department of Justice. Research and Statistics Division. The Costs of Charter Litigation, by Alan Young, 2016.

Canada. Department of Justice. Research and Statistics Division. The Review Board Systems in Canada: An Overview of Results from the Mentally Disordered Accused Data Collection Study, by Jeff Latimer and Austin Lawrence, 2006.

Choudhry, Sujit, and Kent Roach. "Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies" (2003), 21 S.C.L.R. (2d) 205.

Corrigan, Patrick W., and Amy C. Watson. "Understanding the impact of stigma on people with mental illness" (2002), 1 World Psychiatry 16.

Devlin, Richard, and Dianne Pothier. "Introduction: Toward a Critical Theory of Dis-Citizenship", in Dianne Pothier and Richard Devlin, eds., Critical Disability Theory: Essays in Philosophy, Politics, Policy, and Law. Vancouver: UBC Press, 2006, 1.

Hoole, Grant R. "Proportionality as a Remedial Principle: A Framework for Suspended Declarations of Invalidity in Canadian Constitutional Law" (2011), 49 Alta. L. Rev. 107.

Jhaveri, Swati. "Sunsetting suspension orders in Hong Kong", in Po Jen Yap, ed., Constitutional Remedies in Asia. New York: Routledge, 2019.

Kelly, James B. Governing with the Charter: Legislative and Judicial Activism and Framers' Intent. Vancouver: UBC Press, 2005.

Leckey, Robert. Bills of Rights in the Common Law. Cambridge: Cambridge University Press, 2015.

Leckey, Robert. "Remedial Practice Beyond Constitutional Text" (2016), 64 Am. J. Comp. L. 1.

Roach, Kent. Constitutional Remedies in Canada. Aurora: Canada Law Book, 1994 (loose-leaf updated 2020).

Roach, Kent. "Principled Remedial Discretion Under the Charter" (2004), 25 S.C.L.R. (2d) 101.

Roach, Kent. "The Separation and Interconnection of Powers in Canada: The Role of Courts, the Executive and the Legislature in Crafting Constitutional Remedies" (2018), 5 J. Int'l Comp. L. 315.

Russell, Peter H. "Standing Up for Notwithstanding" (1991), 29 Alta. L. Rev. 293.

Ryder, Bruce. "Suspending the Charter" (2003), 21 S.C.L.R. (2d) 267.

Scalia, Antonin. "The Rule of Law as a Law of Rules" (1989), 56 U. Chicago L. Rev. 1175.

Stavsky, Mark M. "The Doctrine of State Necessity in Pakistan" (1983), 16 Cornell Int'l L.J. 341.

Stuart, Heather, et al. "Stigma in Canada: Results from a Rapid Response Survey" (2014), 59 Can. J. Psychiatry S27.

Stuart, Heather, Julio Arboleda-Flórez and Norman Sartorius. Paradigms Lost: Fighting Stigma and the Lessons Learned. New York: Oxford University Press, 2012.

Trotter, Gary T. "Justice, Politics and the Royal Prerogative of Mercy: Examining the Self-Defence Review" (2001), 26 Queen's L.J. 339.

van Kralingen, Alex. "The Dialogic Saga of Same-Sex Marriage: EGALE, Halpern, and the Relationship Between Suspended Declarations and Productive Political Discourse About Rights" (2004), 62 U.T. Fac. L. Rev. 149.

Wasserman, David, et al. "Disability: Definitions, Models, Experience", in E. N. Zalta et al., eds., Stanford Encyclopedia of Philosophy, 2016 (online: https://plato.stanford.edu/archives/sum2016/entries/disability/).

Webber, Grégoire C. N. "Originalism's Constitution", in Grant Huscroft and Bradley W. Miller, eds., The Challenge of Originalism: Theories of Constitutional Interpretation. New York: Cambridge University Press, 2011, 147.

Weiler, Paul C. "Rights and Judges in a Democracy: A New Canadian Version" (1984), 18 U. Mich. J.L. Ref. 51.

Weinrib, Lorraine. Suspended invalidity orders out of sync with Constitution, August 21, 2016 (online: https://www.lawtimesnews.com/news/general/suspended-invalidity-orders-out-of-sync-with-constitution/258931).

Whyte, John D. "Sometimes Constitutions are Made in the Streets: The Future of the Charter's Notwithstanding Clause" (2007), 16 Const. Forum 79.

APPEAL from a judgment of the Ontario Court of Appeal (Doherty, van Rensburg and Hourigan JJ.A.), 2019 ONCA 264, 432 C.R.R. (2d) 97, 145 O.R. (3d) 161, 374 C.C.C. (3d) 55, 54 C.R. (7th) 120, [2019] O.J. No. 1683 (QL), 2019 CarswellOnt 4915 (WL Can.), setting aside a decision of Lederer J., 2017 ONSC 6713, 401 C.R.R. (2d) 297, [2017] O.J. No. 6355 (QL), 2017 CarswellOnt 19307 (WL Can.). Appeal dismissed, Côté and Brown JJ. dissenting in part.

S. Zachary Green, for the appellant.

Marshall A. Swadron, Joanna H. Weiss and Arooba Shakeel, for the respondent.

Marc Ribeiro and John Provart, for the intervener the Attorney General of Canada.

Jill R. Presser and Shakir Rahim, for the intervener the Canadian Civil Liberties Association.

Anita Szigeti, Andrew Menchynski, Ruby Dhand and Meaghan McMahon, for the intervener the Empowerment Council.

Erin Dann and Michelle Psutka, for the intervener the Criminal Lawyers' Association (Ontario).

Cheryl Milne, for the intervener the David Asper Centre for Constitutional Rights.

Adam Goldenberg and Ljiljana Stanić, for the intervener the Canadian Mental Health Association, Ontario.

Reasons for Judgment

The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ. was delivered by

Karakatsanis J. —

I. Introduction

[ 1 ] People with mental illnesses face persistent stigma and prejudicial treatment in Canadian society, which has imposed profound and widespread social, political, and legal disadvantage on them. In particular, discriminatory perceptions that those with mental illnesses are inherently and indefinitely dangerous persist. These perceptions have served to support some of the most unjust treatment of those with mental illnesses. As this case demonstrates, such perceptions still find some expression in legislation.

[ 2 ] Section 15 of the Canadian Charter of Rights and Freedoms prevents such discrimination from being given the force of law. This appeal requires the Court to apply the equality guarantee to the manner in which those found not criminally responsible on account of mental disorder (NCRMD) of sexual offences are treated by Ontario's sex offender registry regime. It also provides an opportunity to set out a consistent set of principles applicable to granting remedies for legislation that violates the Charter.

[ 3 ] In Ontario, Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1 (Christopher's Law), requires those who are either convicted or found NCRMD of a sexual offence to physically report to a police station to have their personal information added to the province's sex offender registry. They must continue to report in person at least once a year to keep their information up to date. They must also report every time certain information changes. Even when individuals are no longer required to report or when they die, information previously gathered about them under the registry is retained.

[ 4 ] Those who are found guilty of a sexual offence can be exempted from reporting in the first place by receiving a discharge under s. 730 of the Criminal Code, R.S.C. 1985, c. C-46, can be removed from the registry upon receipt of a free pardon, and can be exempted from continuing to report upon receipt of either a free pardon or criminal record suspension. There is therefore some opportunity, based on an individualized assessment, to be exempted from the sex offender registry. By contrast, everyone found NCRMD must report upon discharge by a provincial review board or court, without exception, no one found NCRMD can ever be removed from the registry, and no one found NCRMD can ever be exempted from reporting. This is so even if they have received a discharge from a review board.

[ 5 ] G, the respondent, was found NCRMD of two sexual offences and then absolutely discharged by the Ontario Review Board (ORB). His record in the 19 years since those offences occurred has been spotless. Nevertheless, as Christopher's Law currently stands, G will have to report and will be a registered "sex offender" for the rest of his life. His information will remain in the registry even after he passes away. He has no opportunity for removal.

[ 6 ] In my view, Christopher's Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter. These discriminatory distinctions cannot be justified in a free and democratic society. I would therefore dismiss the appeal and uphold the Court of Appeal's orders declaring Christopher's Law to be of no force or effect as it applies to those found NCRMD and granted an absolute discharge, suspending the declaration of invalidity for 12 months, and exempting G from that suspension by relieving him of further compliance with the legislation and ordering that his information be deleted from the registry immediately.

II. Background

[ 7 ] In September 2001, G experienced his first and only manic episode. A month later, he was charged with two counts of sexually assaulting his then-wife, one count of unlawfully confining her, and one count of harassment. The two incidents underlying the charges occurred as a result of that manic episode.

[ 8 ] In June 2002, G was found NCRMD. When G appeared before the ORB in July 2002, he received a conditional discharge. In August 2003, the ORB ordered that he be absolutely discharged on the basis that "[t]here is simply no evidence to find that [G] is a significant risk to the safety of the public" (2017 ONSC 6713, 401 C.R.R. (2d) 297, at para. 17). G has not engaged in criminal activity since being absolutely discharged approximately 17 years ago. He has adhered to treatment and his symptoms have been in full remission. He has maintained stable employment and has strong and supportive relationships with his family.

[ 9 ] G was placed on the provincial sex offender registry in August 2004, and on the federal registry in January 2005. Since then, G has fully complied with his reporting obligations. He has reported in person annually as required by Christopher's Law and has complied with other requirements imposed by the federal Sex Offender Information Registration Act, S.C. 2004, c. 10 (SOIRA).

[ 10 ] G brought an application challenging Christopher's Law (and the federal registry, which is not at issue in this appeal) as it applies to persons found NCRMD who have been absolutely discharged under Part XX.1 of the Criminal Code in respect of offences giving rise to registration. He took the position that the inability of people in his situation to be granted an exemption or be removed from the registry violates ss. 7 and 15(1) of the Charter. G's application was dismissed at first instance, but his appeal was allowed in part.

A. Ontario Superior Court of Justice (2017 ONSC 6713, 401 C.R.R. (2d) 297) (Lederer J.)

[ 11 ] Relying on the evidence of the government's expert witness, the application judge found that, although it is not possible to predict the risk of recidivism with certainty using actuarial data, the risk of reoffending for a person found NCRMD is no less than that of an individual found guilty. He concluded that, from the perspective of risk assessment, it makes little difference whether the sexual offence results in a criminal conviction or a finding of NCRMD, because people who have been found NCRMD have criminal recidivism rates that are substantially higher than the rates of first-time offending among individuals with no criminal history.

[ 12 ] Dealing with the s. 7 claim, the application judge accepted that G's liberty interest is engaged but rejected G's argument that his security of the person interest is engaged. Relying on the conclusion of the Ontario Court of Appeal in R. v. Dyck, 2008 ONCA 309, 90 O.R. (3d) 409, at para. 106, that the registration and reporting requirements were "quite modest", the application judge concluded that any deprivation of liberty is in accordance with the principles of fundamental justice.

[ 13 ] The application judge also found no violation of s. 15(1). He found that Christopher's Law does not distinguish between those found NCRMD and those found guilty of an offence, either on the face of the law or in its impact. This is because the distinction between those found guilty and those found NCRMD is not found in Christopher's Law and because the impact of Christopher's Law is "modest".

B. Ontario Court of Appeal (2019 ONCA 264, 145 O.R. (3d) 161) (Doherty, van Rensburg and Hourigan JJ.A.)

[ 14 ] On appeal, Doherty J.A. for a unanimous Court of Appeal upheld the application judge's dismissal of G's s. 7 argument. He agreed with the application judge that Christopher's Law engages G's liberty interest but not his security of the person interest. He also agreed that the deprivation of liberty conforms to the principles of fundamental justice, relying on the Court of Appeal's prior decisions in Dyck and R. v. Long, 2018 ONCA 282, 45 C.R. (7th) 98.

[ 15 ] However, Doherty J.A. allowed the appeal on the basis of G's s. 15(1) claim. He found that the effects of Christopher's Law distinguish between convicted persons and persons found NCRMD on the basis of disability. Convicted persons, Doherty J.A. reasoned, can access mechanisms that allow them to avoid registration in the first place, to be relieved of reporting requirements, or to be removed from the registry. Persons found NCRMD cannot access comparable "exit ramps", even once they have been absolutely discharged. Doherty J.A. concluded that those distinctions are discriminatory because they foster the stereotypical idea that persons found NCRMD are inherently and perpetually dangerous.

[ 16 ] Doherty J.A. also concluded that the law violates the s. 15(1) right of those found NCRMD who receive an absolute discharge by failing to provide them with individualized treatment, citing Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625. Substantive equality, in his view, mandates that those found NCRMD and absolutely discharged have some opportunity for individualized assessment as a precondition for being subject to registry obligations.

[ 17 ] Because the law does not minimally impair equality rights, Doherty J.A. concluded that the s. 15(1) breaches are not justified under s. 1. There was no evidence the public safety objective of Christopher's Law would be undermined by extending exemptions to persons found NCRMD who have been absolutely discharged. He reasoned that exemptions have already been extended to convicted persons without apparent damage to this objective.

[ 18 ] As to remedy, Doherty J.A. suspended the declaration of invalidity for 12 months to allow the legislature to determine the appropriate response. However, he exempted G from the suspension by ordering that he be immediately removed from and relieved of obligations under the registry. Doherty J.A. reached the same conclusions with respect to the federal sex offender regime under SOIRA; the Attorney General of Canada did not appeal the decision.

III. Issues

[ 19 ] The Attorney General of Ontario appeals the order declaring Christopher's Law to be without force or effect as it applies to those found NCRMD and absolutely discharged, as well as the order that G be immediately removed from and relieved of his obligations under the registry.

[ 20 ] The following issues, relating to whether the sex offender scheme infringes the rights of those found NCRMD, arise in this case:

A. Does Christopher's Law violate s. 15(1)?

B. If so, is it justified as a reasonable limit under s. 1 of the Charter?

C. Does Christopher's Law violate s. 7?

D. What is the appropriate remedy? Was the declaration of invalidity properly suspended for some period of time? If so, was G properly granted an individual exemption from that suspension?

[ 21 ] I begin by outlining the relevant aspects of Christopher's Law and Part XX.1 of the Criminal Code, then turn to the issues in this appeal.

IV. *Christopher's Law*

[ 22 ] Christopher's Law establishes a registry containing, among other things, the names, dates of birth, addresses, personal and business phone numbers, employers, descriptions, and photographs of Ontario residents who have been convicted or found NCRMD in respect of a sexual offence, along with the sexual offence in question (s. 2; Christopher's Law (Sex Offender Registry), 2000, O. Reg. 69/01 (Christopher's Law Regulation), s. 2).

[ 23 ] Christopher's Law imposes three distinct types of burdens on registrants. First, registrants must comply with initial reporting requirements that, broadly, apply upon release into the community. Second, registrants must continue to report at least once a year and within seven days of specified events, such as changing their addresses or names. Third, registrants' information persists in the registry, subject to removal only in the event that a registrant receives a free pardon (s. 9.1; Christopher's Law Regulation, s. 2(3)). I explain these burdens in more detail below.

[ 24 ] Registrants must present themselves in person at a police station or other designated place to comply with their initial reporting requirements within seven days of release from custody, release on parole, release following absolute or conditional discharge after being found NCRMD, and becoming resident in Ontario (s. 3(1); Christopher's Law Regulation, s. 1.2). This initial in-person reporting obligation takes 45-60 minutes to complete at a police station.

[ 25 ] Registrants must present themselves at least once a year to fulfil their ongoing reporting obligations (s. 3(1)(f) and (g)). They must provide a wide variety of information identified in the regulations, including their name and any present or past aliases, their addresses, their personal and business phone numbers, the name of their employers, their photograph, their physical description, their driver's licence number, their licence plate number, the characteristics of the car they regularly use, and the educational institutions in which they are enrolled (s. 3(2); Christopher's Law Regulation, s. 2). It takes 30-60 minutes to fulfil the annual reporting obligation. Registrants are also required to report every time they change their address, change their name, and become or cease to be an Ontario resident.

[ 26 ] Registrants must comply with the reporting obligations for 10 years if the maximum sentence for the sexual offence of which they were convicted or found NCRMD is 10 years or less (s. 7(1)(a)). They must comply for life if the maximum sentence is greater than 10 years or if they were convicted or found NCRMD of more than one sexual offence (s. 7(1)(b) and (c)).

[ 27 ] There is no reporting obligation for those who receive conditional or absolute discharges under s. 730 of the Criminal Code, because s. 730(3) deems those individuals not to have been convicted of the offence, and s. 3 of Christopher's Law only captures persons who have been convicted or found NCRMD of an offence.

[ 28 ] Under s. 7(4) of Christopher's Law, a registrant is no longer required to report upon receiving either a free pardon or a criminal record suspension. A free pardon deems the recipient to have never committed the offence of which they were convicted (Criminal Code, s. 748(3)). A free pardon may be granted either under the Crown's prerogative of mercy or under s. 748 of the Criminal Code. Historically, the prerogative of mercy and the free pardon, one of the remedies the prerogative can provide, have been exercised to correct wrongful convictions and to compassionately ameliorate the impacts of convictions (Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 28; G. T. Trotter, "Justice, Politics and the Royal Prerogative of Mercy: Examining the Self-Defence Review" (2001), 26 Queen's L.J. 339). A record suspension is granted by the National Parole Board to those who have been convicted of an offence. Good conduct in the period since the end of imprisonment or probation is among the circumstances to be considered in granting a record suspension (Criminal Records Act, R.S.C. 1985, c. C-47, ss. 4 and 4.1).

[ 29 ] Under s. 9.1 of Christopher's Law, a registrant will be removed from the registry upon receiving a free pardon. At the time of G's registration, s. 9.1 also provided that a registrant would be removed from the registry upon receiving what is now referred to as a record suspension. However, while a record suspension removes the reporting requirement, it no longer leads to removal from the registry (Christopher's Law (Sex Offender Registry) Amendment Act, 2011, S.O. 2011, c. 8, ss. 1(1) and 6). Finally, there is no mechanism for removing registrants' information upon a successful appeal, nor when they pass away. Instead, the registrant's date of death is added to the registry (Christopher's Law Regulation, s. 2(1) 10).

[ 30 ] Information contained in the registry can be disclosed to police forces within and outside Canada for crime prevention and law enforcement purposes, and disclosed publicly by a chief of police or designate under certain circumstances (s. 10(2) and (3); Police Services Act, R.S.O. 1990, c. P.15, s. 41(1.1) and (1.2)).

[ 31 ] Significantly, Christopher's Law requires police forces to make reasonable efforts to verify an offender's address at least once a year, which may consist of attending at a registrant's home (s. 4(2)). It does not set limits on the number of checks that can be conducted for verification purposes and does not require police forces to give registrants notice of verification efforts.

[ 32 ] Registrants who fail to comply with Christopher's Law are subject to a maximum fine of $25,000 or up to a year's imprisonment for a first offence and a maximum fine of $25,000 or up to two years' imprisonment less a day for a subsequent offence (s. 11).

V. *Criminal Code*, Part XX.1

[ 33 ] Part XX.1 of the Criminal Code sets out the "assessment-treatment system" that applies to persons who are exempt from criminal responsibility and receive a verdict of NCRMD by virtue of ss. 16(1) and 672.34 (Winko, at para. 16). Part XX.1 provides for the establishment of provincial review boards, with the responsibility to hold hearings to determine whether to grant persons found NCRMD conditional or absolute discharges under s. 672.54. [1]

[ 34 ] In Winko, at para. 20, this Court described the purposes of Part XX.1, a scheme founded on the "twin goals of fair treatment [for those found NCRMD] and public safety":

. . . the purpose of Part XX.1 is to replace the common law regime for the treatment of those who offend while mentally ill with a new approach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. . . . [The NCRMD finding] triggers a balanced assessment of the offender's possible dangerousness and of what treatment-associated measures are required to offset it. Throughout the process the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1's goals of public protection and fairness to the NCR accused. [para. 43]

[ 35 ] Following a disposition or review hearing, a review board may order an absolute discharge, a conditional discharge, or a hospital detention (s. 672.54). In arriving at a disposition that is "necessary and appropriate in the circumstances", review boards must take into account the safety of the public, along with the mental condition of the person found NCRMD, their reintegration into society, and their other needs (s. 672.54). Conditions relating to treatment may only be included in a disposition if the accused consents to the condition (s. 672.55).

[ 36 ] In general, disposition hearings are held within 45 days of an NCRMD verdict, and disposition review hearings are held no more than 12 months after the most recent disposition or disposition review hearing (ss. 672.47 and 672.81).

[ 37 ] The review board must absolutely discharge any person found NCRMD unless it concludes, based on the evidence presented at the hearing, that the person poses a "significant risk of committing a serious criminal offence" (Winko, at para. 57; see also s. 672.54(a)). If the review board cannot make the required positive finding of significant risk, jurisdiction under Part XX.1 falls away — the criminal law cannot legitimately restrain that individual's liberty any further (Winko, at para. 33).

[ 38 ] This constitutional imperative, coupled with the individualized review that the review board must undertake at least annually in every person's case, illustrate Part XX.1's rejection of "invidious" stereotypical notions that persons with mental illnesses are inherently dangerous (Winko, at paras. 35, 47 and 89). Risk cannot be assumed; it must be positively found. And it must be found based on evidence considered within an individualized assessment of a person's circumstances.

VI. Analysis

A. Does *Christopher's Law* Infringe the Equality Rights of Those Found NCRMD?

(1) General principles

[ 39 ] The equality guarantee has a powerful remedial purpose (Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, at para. 3; see also Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, at p. 171). As Abella J. noted in Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, the "root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed" (para. 332) — though, of course, historical discrimination need not be demonstrated for a court to find that a law infringes s. 15(1). The equality guarantee seeks to prevent and remedy discrimination against groups subject to social, political, and legal disadvantage in Canadian society (R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, at p. 994; see also Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624, at para. 54). It expresses a commitment to recognizing the essential, inalienable equal worth of all persons through the law (Andrews, at p. 171; Eldridge, at para. 54). In Andrews, the launching pad of the Court's Charter equality jurisprudence, McIntyre J. observed that the "worst oppression will result from discriminatory measures having the force of law" (p. 172). The equality guarantee means that discriminatory laws will have no force at all.

[ 40 ] The Court asks two questions in determining whether a law infringes s. 15(1). First, does the challenged law, on its face or in its impact, draw a distinction based on an enumerated or analogous ground? If a law is facially neutral, it may draw a distinction indirectly where it has an adverse impact upon members of a protected group. Second, if it does draw a distinction, does it impose "burdens or [deny] a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating . . . disadvantage", including "historical" disadvantage? (See Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522, at para. 22, citing Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at paras. 19-20, and Quebec v. A, at paras. 323-24 and 327; see also Quebec v. A, at para. 332, Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at paras. 25-28, and Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113, at paras. 27 and 30, per Abella J.)

[The full reasons of Karakatsanis J. continue at paras. 41–184, addressing the s. 15(1) analysis (paras. 41–76), s. 1 justification (paras. 77–80), s. 7 (para. 81), and the remedy (paras. 82–183), concluding at para. 184: "For these reasons, I would dismiss the appeal with costs."]

VII. Conclusion

[ 184 ] For these reasons, I would dismiss the appeal with costs.

Concurring Reasons

The following are the reasons delivered by

Rowe J. —

[ 185 ] I agree with Justices Côté and Brown regarding s. 15(1) of the Canadian Charter of Rights and Freedoms (at paras. 221-24), and regarding the general approach to ordering an individual exemption under s. 24(1) from the suspended effect of a declaration of invalidity under s. 52(1) of the Constitution Act, 1982 (interspersed among paras. 273-93).

[ 186 ] On the proper approach to suspending a declaration of invalidity under s. 52(1), however, I would reaffirm Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679. As the Court stated in that case, a declaration of invalidity should be suspended only in certain circumstances, where: (1) an immediate declaration of invalidity would pose a potential danger to the public; (2) it would otherwise threaten the rule of law; or (3) the law is underinclusive and the court cannot determine properly whether to cancel or extend its benefits, but rather should provide an opportunity for the legislature to decide that. I would not treat these categories as closed. Nor would I abandon them in favour of some loosely defined exercise of discretion. Rather, they should be extended only where an immediate declaration would infringe some constitutional principle.

[ 187 ] The Court should depart from a precedent such as Schachter only in "compelling circumstances" (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 18). For example, a precedent can be revisited if it is "unsound in principle", "unworkable and unnecessarily complex to apply", or if it has "attracted significant and valid judicial, academic, and other criticism" (Vavilov, at para. 20).

[ 188 ] In recent years, the Court has departed from the approach set out in Schachter without sufficient reflection. It has suspended declarations beyond Schachter's categories and without regard to the reasoning underlying those categories. Some suspensions have been ordered without reference to Schachter. This gap between theory and practice — between precedent and its application — is noted by Justice Karakatsanis (at paras. 106 and 125) and by Justices Côté and Brown (paras. 233-35).

[ 189 ] Such a gap invites reflection. But, that does not mean the precedent should be abandoned, as my colleagues favour. Upon reflection, I would affirm the approach in Schachter, as I shall explain.

I. *Schachter* Is Sound in Principle

[ 190 ] Schachter is grounded in a view that suspended declarations of invalidity need be reserved for exceptional circumstances, as s. 52(1) does not imbue courts with a remedial discretion. The starting point for reflecting on Schachter is whether that interpretation of s. 52(1) is sound.

[ 191 ] In line with the purposive approach to constitutional interpretation, the language of s. 52(1) needs to be understood in the context of the character and larger objects of the Constitution Act, 1982 (R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, at p. 344; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at paras. 178-85, per Rowe J.; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 39).

[ 192 ] Aside from the circumstance of unlawfully obtained evidence (s. 24(2)), the Constitution Act, 1982, provides two remedies for unlawful state action. The contrast between these is instructive:

a) Where rights or freedoms have been infringed, s. 24(1) states that a court may provide "such remedy as the court considers appropriate and just in the circumstances". It is "difficult to imagine language which could give the court a wider and less fettered discretion" (Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863, at p. 965).

b) An individual who complains not of a particular infringement but of an unconstitutional law can seek a remedy under s. 52(1). Unlike s. 24(1), s. 52(1) refers neither to judicial process, nor to discretion. Rather, a law that is inconsistent with the Constitution "is, to the extent of the inconsistency, of no force or effect".

[ 193 ] Thus, while under s. 24(1) the courts have wide discretion to craft remedies for specific infringements, no such discretion is conferred under s. 52(1) with respect to unconstitutional laws. The rationale for this dichotomy can be seen in the language of s. 1: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". The power to limit constitutional rights has been entrusted to the legislatures rather than to the courts.

[ 194 ] On a purposive interpretation, the absence of remedial discretion in s. 52(1) is no oversight. The Constitution Act, 1982, does not give courts a choice as to whether to give effect to Canadians' right to be free from unconstitutional laws. The Constitution is not an equitable remedy or a writ of grace that lies in the favour of the courts. It confers rights of which Canadians are entitled to immediate protection. But the Constitution Act, 1982, is not the whole Constitution.

[ 195 ] The Constitution Act, 1982's first decade revealed situations in which this immediate approach to s. 52(1), unqualified, would cause conflict with other constitutional principles. An immediate declaration of invalidity in Reference re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721, would have threatened the rule of law. An immediate declaration of invalidity in R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, would have posed a potential danger to the public, thereby depriving Canadians of the protection of the law, which is an aspect of the rule of law. In these cases, resolution of the conflict between competing constitutional principles called for a suspended declaration.

[ 196 ] As well, Schachter addressed an ambiguity latent within s. 52(1). When a law offers an underinclusive benefit, there may be no unique "extent of the inconsistency" to strike down. It might be possible to render the scheme constitutional by severing words (R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711), reading in words (Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493), reading down the scheme (Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401), or striking down the scheme altogether.

[ 197 ] Because the appropriate remedy cannot always be discerned by a court in situations of underinclusive benefits, the supremacy of the legislature as a constitutional principle legitimately comes to bear; a declaration of suspended invalidity provides an opportunity for this to be given effect. For example, Schachter concerned a financial benefit that was available to adoptive parents, but not to natural parents. Reading in natural parents would have massively expanded and transformed the benefit, causing the Court (as Chief Justice Lamer noted) to act beyond its proper institutional role. Conversely, striking the benefit down altogether would have harmed many adoptive parents without benefiting the plaintiffs. A suspension of the declaration of invalidity ensured that the legislation would be made constitutional, but left the means of so doing to Parliament.

[ 198 ] The remark in Schachter that the decision to suspend a s. 52(1) remedy turns on "the effect of an immediate declaration on the public" rather than "considerations of the role of the courts and the legislature" (p. 717) must be understood in this context. Institutional considerations by themselves do not provide a constitutional basis for a suspension. Rather, it is only in a situation of underinclusiveness where the proper s. 52(1) remedy is unclear that such institutional considerations may have an effect on whether to order a suspension, as indeed was the case in Schachter (pp. 721-24).

[ 199 ] In this view, the Schachter categories exemplify circumstances in which countervailing constitutional principles constitute a valid basis to suspend an immediate declaration of invalidity that would otherwise follow by virtue of s. 52(1). While in my view the three categories are not exhaustive, a court should suspend a declaration of invalidity only if there is a constitutional basis for doing so. By necessary implication, the inherent jurisdiction of a court is not a sound or sufficient legal basis to depart from the immediate effect of s. 52(1).

II. *Schachter* Can Be Workable

[ 200 ] While the Court has departed from Schachter, this does not indicate that there are conceptual flaws with the approach in Schachter. I say this mindful of cases such as Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, in which this Court struck down offences relating to sex work. Chief Justice McLachlin indicated that "[w]hether immediate invalidity would pose a danger to the public or imperil the rule of law . . . may be subject to debate", but suspended the declaration because "moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians" (para. 167). Was a suspension legally justified in Bedford? I am not confident that the concerns noted by the Chief Justice constitute a valid legal basis for continuing to subject Canadians to laws rendered unconstitutional by virtue of s. 52(1).

[ 201 ] Nor have the Schachter categories proved unworkable or difficult to apply in practice. Academics have had little difficulty identifying cases in which the Court has departed from Schachter (B. Ryder, "Suspending the Charter" (2003), 21 S.C.L.R. (2d) 267; C. Mouland, "Remedying the Remedy: Bedford's Suspended Declaration of Invalidity" (2018), 41 Man. L.J. 281, at pp. 289-90; L. Weinrib, Suspended invalidity orders out of sync with Constitution, August 21, 2006 (online); R. Leckey, "The harms of remedial discretion" (2016), 14 I CON 584; S. Burningham, "A Comment on the Court's Decision to Suspend the Declaration of Invalidity in Carter v. Canada" (2015), 78 Sask. L. Rev. 201; G. R. Hoole, "Proportionality as a Remedial Principle: A Framework for Suspended Declarations of Invalidity in Canadian Constitutional Law" (2011), 49 Alta. L. Rev. 107).

[ 202 ] In the six years after Schachter, its categories were applied without difficulty. According to Ryder's count, only two out of sixteen s. 52(1) remedies were suspended (Ryder, at pp. 294-97). Schachter did not prove unworkable in practice; the problem was that it was too often honoured in the breach. It had been tested, it had worked well, and it can continue to do so.

III. Alternative Approaches Are Not Preferable

[ 203 ] Justice Karakatsanis suggests that the Schachter categories be replaced by what she calls a "principled discretion". This is distinguished from what she refers to as "complete discretion" by four principles:

A. Charter rights should be safeguarded through effective remedies.

B. The public has an interest in the constitutional compliance of legislation.

C. The public is entitled to the benefit of legislation.

D. Courts and legislatures play different institutional roles (para. 94).

[ 204 ] I take no issue with these four statements. But, they lack analytic structure. Rather, they are so indeterminate and truistic as to provide no meaningful guidance. While they are compatible with the Court's uneven jurisprudence, they are equally compatible with very different choices. They present less a constraint on judicial discretion than a vocabulary for justifying ad hoc decisions.

[ 205 ] My colleague says that a "principled" approach is better as it requires justification. This is not persuasive. All decisions require justification. Whether the framework is expressed using principles or categories, what is at issue is whether it constrains discretion ― as the Schachter framework does ― or whether in reality it throws open the door to judicial fiat. I am concerned that the discretionary approach Justice Karakatsanis advocates will lead to a continuation of current trends, in which declarations of invalidity are suspended in a way that varies with the length of the Chancellor's foot.

[ 206 ] More fundamentally, I see no legitimate basis to read remedial discretion into s. 52(1). The provision admits of no such discretion. Rather, it is only by virtue of competing constitutional principles or ambiguity within s. 52(1) itself that one can justify suspending a declaration of invalidity. Statutes that are inconsistent with the Constitution are of no effect. Nothing can revive them. The only basis on which they can be ordered to be enforced notwithstanding their illegality is that to declare them to be immediately illegal would offend some other constitutional principle. Courts have no inherent authority to make legal that which is not. In this I differ fundamentally with my colleague.

[ 207 ] My colleague writes at paras. 120-21:

While s. 52(1) does not explicitly provide the authority to suspend a declaration, in adjudicating constitutional issues, courts "may have regard to unwritten postulates which form the very foundation of the Constitution of Canada" (Manitoba Language Rights, at p. 752; see also R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342 at para. 52). [Footnote omitted]

The power to suspend the effect of a declaration of invalidity should be understood to arise from accommodation of broader constitutional considerations and is included in the power to declare legislation invalid. . . .

She also writes, at para. 85, that "[a] general declaration pursuant to courts' statutory or inherent jurisdiction is the means by which they give full effect to the broad terms of s. 52(1)".

[ 208 ] Respectfully, I disagree. This suggests that Superior Courts possess a form of inherent authority sufficient to override express provisions of the Constitution. On occasion courts have been called on to answer questions concerning the relationship of institutions of the state for which no answer is provided in the written Constitution, e.g. in Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217. On such rare and exceptional occasions courts "may have regard to unwritten postulates which form the very foundation of the Constitution of Canada", which might be called structural analysis. But, in such instances, courts provide an answer as to the authority of the legislature or the executive where the written Constitution is silent. Where the Constitution is explicit, as s. 52(1) is, more is required. The power to suspend a declaration of invalidity is not "included" in s. 52(1); rather, it contradicts s. 52(1). Thus, in order to justify a suspension, one must rely on a countervailing constitutional principle.

[ 209 ] As for Justices Côté and Brown's approach, the rule of law is not the only constitutional principle that can justify suspending a declaration of invalidity. Notably, on a purposive interpretation, underinclusive benefits call for a court to order a suspension so as to give proper place to the legislature in framing a remedy.

IV. Applying *Schachter*

[ 210 ] In this case, the declaration of invalidity was suspended on the basis of public safety concerns.

[ 211 ] The analysis above suggests that courts cannot suspend a declaration of invalidity simply because an immediate declaration might create some risk to public safety. Rather, the risk to public safety must be sufficient to infringe the constitutional principle of the rule of law, so that the court is forced to reconcile two conflicting constitutional principles.

[ 212 ] The threshold for suspending a declaration of invalidity can be illustrated by the cases in which the Court has invoked the public safety rationale. In Swain, the Court struck down the power to detain accused who were acquitted "by reason of insanity", as it was phrased at the time. In R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489, the Court struck down the scheme for detaining those found unfit to stand trial. In Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, the Court struck down a scheme for detaining foreign nationals or permanent residents on grounds of security.

[ 213 ] In all three cases, an immediate declaration would have released individuals who were held in custody because they posed a danger to public safety. The risk to public safety was high, as would be expected to justify reading into the Constitution a discretion to suspend a declaration of invalidity.

[ 214 ] In this case, neither party focused their submissions on the suspension. In addition, this Court refused to stay the 12-month suspension (Ontario (Attorney General) v. G, 2019 SCC 36, [2019] 2 S.C.R. 990), which thus expired on April 4, 2020, rendering the issue moot. In the circumstances, there is no cause to decide whether the declaration was properly suspended.

[ 215 ] The issue of the exemption order is also moot. The respondent does not need to be exempted from legislation that is already of no force or effect. As a result, although I am in substantial agreement with the approach to individual exemptions set out by Justices Côté and Brown, there is no cause to decide whether the individual exemption was rightly ordered.

V. Conclusion

[ 216 ] Rather than departing from Schachter and replacing it with another approach, I would affirm it, with the explanations that I have set out above.

[ 217 ] In the result, I would dismiss the appeal.

Joint Reasons Dissenting in Part

The following are the reasons delivered by

Côté and Brown JJ. (dissenting in part) —

I. Overview

[ 218 ] While we agree with our colleague Karakatsanis J.'s conclusion that Christopher's Law infringes Mr. G's Charter right to equal treatment under the law, we write separately to constitutionally ground the usage of suspended declarations of invalidity in a way our colleague does not. In our view, suspended declarations of invalidity — which allow for the ongoing infringement of Charter rights — ought to be granted as a measure of last resort, and only to protect the rule of law. Relatedly, we respectfully disagree with our colleague that this Court's remedial jurisprudence since Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679, "has come to coalesce around a group of core remedial principles" (Karakatsanis J.'s reasons, at para. 82). To the contrary, our reading of this Court's jurisprudence reveals none of the principles our colleague identifies. Instead, unmoored from the rule of law, it has produced inconsistent and unprincipled results. A return to first principles is necessary.

[ 219 ] Our colleague would also grant Mr. G an individual exemption from the suspended declaration. With respect, doing so here would exceed the institutional competence of this Court and intrude into legislative domain.

[ 220 ] For the reasons that follow, we would uphold the 12-month suspension of the declaration of invalidity. We would not, however, grant the respondent an individual exemption.

II. Section 15(1) of the *Canadian Charter of Rights and Freedoms*

[ 221 ] Before we embark on our discussion of remedy, we offer these observations on our colleague's treatment of s. 15(1) of the Charter.

[ 222 ] In our view, the s. 15(1) issue is easily disposed of. Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1 ("Christopher's Law"), draws a distinction between persons found not criminally responsible on account of mental disorder ("NCRMD") and persons found guilty. And that distinction exacerbates pre-existing disadvantage by perpetuating the stereotype that persons with mental illness are inherently dangerous (Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at paras. 19-20). Persons found guilty have several "exit ramps" leading away from the obligation to comply with Christopher's Law's sex-offender registry: a conditional or absolute discharge under s. 730 of the Criminal Code, R.S.C. 1985, c. C-46, a pardon, or a record suspension (Christopher's Law, ss. 1(1) "offender" and "pardon", 7(4) and 9.1). Persons found NCRMD, by contrast, do not, even where the Ontario Review Board determines that they no longer pose a significant threat to public safety and grants them an absolute discharge. As a result, those persons found NCRMD in respect of more than one sex offence, or in respect of a sex offence with a maximum sentence of more than 10 years, must — categorically and without exception — comply with Christopher's Law for the rest of their lives (s. 7(1)(b) and (c)). This constitutes differential treatment on the basis of an enumerated ground: mental disability. The proper remedy is to require the legislature to provide persons found NCRMD who have been absolutely discharged with an opportunity for exemption and removal from the Christopher's Law registry.

[ 223 ] This disposes fully of the merits of the s. 15(1) issue. Our colleague, however, goes further, and in extensive obiter dicta discusses adverse-effects discrimination and "substantive equality" (paras. 41-69). Her doctrinal statements are not remotely relevant to the issues raised by this appeal, especially considering this is not an adverse-effects case. The distinction in this case is facially apparent: Christopher's Law explicitly states that persons found NCRMD — persons with a mental disability — and those who are "convicted" must comply with its registry (ss. 1(1) "offender", 2 and 8(1)(c)). It then explicitly exempts from compliance with the registry those who have received a pardon, those who have received a record suspension, and those who have received a conditional or absolute discharge under s. 730 of the Code. However, a person found NCRMD is ineligible to receive a pardon, a record suspension, or a discharge under s. 730 because they are deemed under the Code to have committed no crime (ss. 16(1), 672.1(1), 672.34 and 672.35). A discriminatory result such as this one, that arises from reading two or more statutes together, is not adverse-effects discrimination. In cases of adverse-effects discrimination, the discriminatory law appears facially neutral, and causation is the central issue: whether, in spite of its apparent neutrality, the impugned law augments pre-existing disadvantage in its effect (Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, at paras. 75-76). Consequently, in those cases, the claimant has "more work to do" (Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 64). Here, there is simply no work to be done nor any causal connection wanting: the statutes, read together, draw a facial distinction on the basis of mental disability.

[ 224 ] Thus, our silence on paragraphs 41-69 of our colleague's reasons should not be taken as tacit approval of their content. We simply do not see them as offering actual reasons for her judgment, but "commentary . . . or exposition" instead (R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 57).

III. Suspended Declarations of Invalidity

[ 225 ] As we see it, there are three principal reasons why only a threat to the rule of law should warrant a suspended declaration of invalidity. First, this was what the Court envisioned in assuming for the first time the power to issue a suspended declaration in Reference re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721 ("Manitoba Reference"). Secondly, the Constitution commands such a result: the text contemplates immediate declarations as the norm, subject only to a rule of law concern. Thirdly, lessons learned in the wake of Schachter about the practical implications of suspended declarations reveal why a discretionary approach focused on "remedial principles" is undesirable, and why a constitutional tether to the rule of law is so essential. We will address each point in turn.

A. The Genesis and Evolution of Suspended Declarations

[ 226 ] To understand the necessarily exceptional quality of suspended declarations, it is helpful to recount the unprecedented circumstances of Manitoba Reference. Because Manitoba had failed to enact its legislation in English and French, virtually all of its laws passed over more than nine decades were poised to become invalid. Declaring those laws immediately invalid, however, would have created a "legal vacuum . . . with consequent legal chaos" of intolerable proportions (p. 747). All of Manitoba's governing bodies created by law including courts, tribunals, public offices, and school boards would have been stripped of legal authority. The composition of the Manitoba Legislature would have been called into question. The legal order that regulated the affairs of Manitobans "since 1890 [would have been] destroyed and [their] rights, obligations and other effects arising under [the unilingual] laws [would have become] invalid and unenforceable" (p. 749; see also pp. 747-48). An unprecedented "state of emergency" was imminent (p. 766).

[ 227 ] In response, the Court created the suspended declaration, modelled after the doctrine of state necessity. The doctrine of state necessity, reserved for exceptional circumstances like an insurrection or forging a new constitution, allows a government temporary reprieve from complying with its constitution in order to address a public emergency and preserve the rule of law (Manitoba Reference, at p. 761). By accepting for itself the authority to take similar emergency action, the Court was taking a momentous step, since the precedents on state necessity cited by the Court involved emergency action being taken by the executive or legislative branches, not by courts (pp. 763 and 765-66). Further, for obvious reasons the doctrine of state necessity is potentially dangerous, and must be "severely circumscribe[d]" and "narrowly and carefully applied" in order to constitute an affirmation of, rather than an affront to, the rule of law (M. M. Stavsky, "The Doctrine of State Necessity in Pakistan" (1983), 16 Cornell Int'l L.J. 341, at pp. 344 and 342; see also p. 354; Manitoba Reference, at pp. 758-59). The line between using the doctrine as a veil for usurpation of authority and using it to safeguard the constitutional order from harm is fine. For this reason, at the core of the doctrine lies the premise that "courts should be reluctant to permit deviations from constitutional norms" (Stavsky, at p. 344).

[ 228 ] Recognizing the magnitude of this step and its potential threat to the division of powers and the rule of law, the Court in Manitoba Reference tightly constrained the use of suspended declarations. It concluded that a suspended declaration should only be used "in order to preserve the rule of law . . . under conditions of emergency, when it is impossible to comply with" constitutional rights (p. 763 (emphasis added)). The operative focus must be whether a "failure to [suspend the declaration] would lead to legal chaos" (p. 766) or, in other words, whether a suspended declaration is necessary "to preserve the rule of law the Constitution was meant to constitute" (B. Ryder, "Suspending the Charter" (2003), 21 S.C.L.R. (2d) 267, at p. 268). In short, the Court in Manitoba Reference "clearly viewed a temporary suspension of constitutional requirements as extraordinary" (Ryder, at p. 268). It was contingent on the exigency: "to avoid a state of emergency" (Manitoba Reference, at p. 763).

[ 229 ] Since Manitoba Reference, however, this Court has lost its way. The Court now suspends declarations of invalidity almost as a matter of course, often with no justification or attention to the rule of law. [11] In our view, most of the cases in which suspended declarations have issued since Manitoba Reference do not come close to reaching the high threshold it decreed. Rather, suspended declarations have become this Court's "remedial instrument of choice", applied "casually" and as a matter of "routine" or "preference" while affording only "lip service . . . to the dangers of allowing continued violations of Charter rights and freedoms" (G. R. Hoole, "Proportionality as a Remedial Principle: A Framework for Suspended Declarations of Invalidity in Canadian Constitutional Law" (2011), 49 Alta. L. Rev. 107, at pp. 110-11; Ryder, at pp. 271-72 and 280; S. Choudhry and K. Roach, "Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies" (2003), 21 S.C.L.R. (2d) 205, at p. 228; S. Burningham, "A Comment on the Court's Decision to Suspend the Declaration of Invalidity in Carter v. Canada" (2015), 78 Sask. L. Rev. 201, at p. 202; R. Leckey, "Remedial Practice Beyond Constitutional Text" (2016), 64 Am. J. Comp. L. 1 ("Leckey, 'Remedial'"), at p. 23).

[ 230 ] In other words, this Court has been issuing suspended declarations, and even extending those suspensions, with little constitutional or jurisprudential grounding. For instance, in both Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, the Court offered meagre reasons for suspending a declaration of invalidity. In Bedford, the Court suspended the declaration of invalidity on the enigmatic notion that leaving prostitution unregulated "would be a matter of great concern to many Canadians", despite finding that it was "subject to debate" whether an immediate declaration would endanger the public or otherwise imperil the rule of law (para. 167). Even more remarkably, in Carter, the Court gave no reasons for suspending its declaration of invalidity (para. 128).

[ 231 ] The result is that the Court's use of suspended declarations has become wholly detached from the principled foundations stated in Manitoba Reference that animated the existence of what was supposed to be considered a measure of last resort. Today, that remedy has become the norm, rather than the exception. We do not take our colleague as disagreeing with this proposition. But her solution presupposes that there were some other principles quietly at work in the cases. With respect, we are not remotely convinced that this is so.

[ 232 ] Nor do we agree with our colleague that Schachter is the vaccine. Indeed, it is the germ. Prior to Schachter (but after Manitoba Reference), this Court assumed "that laws inconsistent with the new Charter should be declared invalid immediately [and, in the process,] affirmed the primacy and inviolability of the rights and freedoms entrenched in the Charter" (Ryder, at p. 268). After Schachter, however, this Court's posture changed. Statistics bear this out: by our count, out of the 44 times this Court has declared a law invalid for unconstitutionality since Schachter, it has suspended that declaration 23 times (that is, 52 percent of the time). [12] And those numbers have been trending upwards: between 2003 and 2015, that number rose to 74 percent of declarations (see also Ryder, at p. 272; Hoole, at p. 114; J. B. Kelly, Governing with the Charter: Legislative and Judicial Activism and Framers' Intent (2005), at p. 175). The smallest inconvenience associated with an immediate declaration, and circumstances that pale in comparison to the grave situation the Court faced in Manitoba Reference, will now lead the Court to temporarily suspend the operation of the Charter.

[ 233 ] This slippage is due to a move away from the principle stated in Manitoba Reference. Schachter shifted the considerations that can justify a suspended declaration away from the rule of law to "the effect of an immediate declaration on the public" (p. 715; see also pp. 716-17). Further, Schachter expressly recognized two additional circumstances in which a suspended declaration of invalidity could issue: threats to public safety and under-inclusive legislation (p. 715). It also made clear (as our colleague does with her reasons) that these categories are not exhaustive (p. 719). Additionally, Schachter explicitly required courts to consider whether a suspended declaration should issue in each case (pp. 715 and 717).

[ 234 ] Unsurprisingly, after Schachter courts began to find other reasons for issuing suspended declarations, one of which became this Court's primary justification for suspending a declaration: affording the legislature the time it needs to craft a response and choose between Charter-compliant regimes (e.g. Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624, at para. 96; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, at para. 66; U.F.C.W., Local 1518 v. KMart Canada Ltd., 1999 650 (SCC), [1999] 2 S.C.R. 1083, at para. 79; R. v. Guignard, 2002 SCC 14, [2002] 1 S.C.R. 472, at para. 32). But this justification strikes us as irrelevant. The judiciary's choice between an immediate and suspended declaration has no impact on the range of constitutional options open to a legislature in the aftermath of a successful Charter challenge. As Professor Ryder explains:

A key flaw [in the Court's] line of reasoning is that suspended declarations do not in fact offer anything to the legislature that it does not already have. By emphasizing the role of suspended declarations in fostering legislative choice, and dialogue with affected groups, the Court seems to be suggesting that suspensions have the effect of enlarging a legislature's range of choices and consultative possibilities. But this is not necessarily the case. Whether the operation of a declaration of invalidity is immediate or delayed, a legislature faces the exact same range of constitutional possibilities. It is free to disagree with the legal regime that follows upon a Court's choice of an immediate declaration of invalidity and substitute some other constitutional option. It is also free to consult as widely as it wishes in the design of a new Charter-compliant legal regime. [p. 281]

(See also p. 285.)

[ 235 ] Respectfully, the proper response to this rampant misuse of suspended declarations is not, as our colleague proposes, to expand the Schachter categories in reliance on newly divined "remedial principles" and "recurring touchstones" (paras. 82 and 153). In practice, this will result in a measure of broad discretion that is anomalous in a legal regime committed to the rule of law and the protection of rights. Schachter's discretion bred inconsistent and unprincipled results, and we see no reason to believe our colleague's appeal to a "broader [constitutional] architecture" (para. 158) will be any different. Rather, the more appropriate response is to return our focus to the Constitution, and particularly its founding principle of the rule of law, in order to ensure the proper vindication of Charter rights and carefully circumscribe the situations in which a suspended declaration can issue.

[The reasons of Côté and Brown JJ. continue at paras. 236–272, addressing the constitutional text (ss. 52(1) and 33(1)), and the practical lessons of Schachter's progeny, concluding that only a threat to the rule of law can warrant a suspended declaration, and that the 12-month suspension was justified on public safety grounds.]

IV. Individual Exemptions

[ 273 ] If a suspended declaration of invalidity should be rare, then an individual exemption from that suspension must be exceedingly so. Indeed, this Court's jurisprudence dictates that, in order to respect the role of the legislature, the limits of a court's institutional capacity, and the potential for horizontal unfairness, an individual exemption is only appropriate in highly "unusual cases where additional s. 24(1) relief is necessary to provide the claimant with an effective remedy" (Ferguson, at para. 63 (emphasis added); see also Schachter, at p. 720; Demers, at paras. 62-63). We see no reason to depart from this.

[ 274 ] A helpful consideration in determining whether an individual exemption is necessary to provide an "effective" remedy is to ask the question the interveners, the David Asper Centre for Constitutional Rights, and the Attorney General of Canada, posit: whether an exemption is necessary to prevent "irreparable harm" to the interests the Charter was designed to protect during the suspension (Asper Centre factum, at para. 2; A.G.C. factum, at para. 55; Roach, Constitutional Remedies, at §§ 14.60, 14.910, 14.930 and 14.1790). The case for irreparable harm must be so significant that it overcomes the weighty need to leave the manner of addressing a constitutional infringement to the legislature. For example, an exemption may be warranted where the litigant needs urgent medical treatment or to ensure the claimant is released from custody. In our view, the test from Ferguson gives flexible interpretation to the words "appropriate and just" in s. 24(1) and allows courts to adhere to their role as defender of fundamental rights by minimizing any injustice caused by the suspension while also — by limiting exemptions to exceptional cases — allowing the legislature to discharge its singular role in formulating complex and multi-faceted legislation.

[ 275 ] Considered here, this is not one of those rare cases where an individual exemption is warranted. There is, to speak plainly, nothing highly unusual about this case: a delayed remedy will not deprive Mr. G of an effective one, nor preclude him from accessing the government's new opportunity for exemption in whatever form that may take. Further, a suspended declaration of 12 months means that Mr. G will, at most, have to report to the police station one more time (for approximately 30-60 minutes (Sup. Ct. reasons, at para. 58)) as part of his obligation to report annually (see Christopher's Law, at ss. 3(1)(f)-(g)). This is a far cry from "irreparable harm". We are, therefore, in respectful disagreement with our colleague's decision to grant Mr. G an individual exemption.

[ 276 ] What is particularly troubling, however, is that our colleague's reasons appear to establish a presumption in favour of individual exemptions in all cases ("if an exemption is otherwise appropriate and just, they should be exempted from suspensions in the absence of a compelling reason not to" (para. 152)). We therefore proceed to offer two important reasons why an individual exemption is inappropriate in this case, and in turn, why setting such a presumption and departing from the collective wisdom of Schachter, Demers, and Ferguson, is imprudent.

[ 277 ] First, in this case, as in most, crafting an individual exemption will exceed the competence of a court and encroach on what is at bottom an issue for resolution by the legislature. This Court has long made clear that filling gaps in unconstitutional legislation is a task for the legislature, not the judiciary (Hunter v. Southam, at p. 169; see also Schachter, at pp. 705 and 707).

[ 278 ] In the case at bar, the legislature is in a far better position than this Court — indeed it is its role — to determine, through research and study, what the appropriate mechanism is to provide persons found NCRMD with the opportunity for exemption, who has the necessary expertise to grant those exemptions, and which factors ought to inform that inquiry. Indeed, there are a plethora of options for the legislature to choose from. Our colleague even acknowledges as much:

. . . reading in an individualized assessment requirement would intrude on the legislative sphere — there are many ways to provide for such an assessment and "it is the legislature's role to fill in the gaps, not the court's" (Schachter, at p. 705). [Emphasis added; para. 165.]

(See also para. 183.)

[ 279 ] The Court of Appeal similarly notes that, because the Sex Offender Information Registration Act, S.C. 2004, c. 10 ("SOIRA"), has been invalidated in Ontario, the Ontario legislature and Parliament will have to consult one another as to the best way to provide exemptions for those unconstitutionally affected:

There are several ways in which Parliament and the Ontario legislature could make the sex offender registry legislation compliant with s. 15(1) of the Charter. Those choices engage various policy considerations. There is also a need for a co-ordinated response by the two legislative bodies. The evaluation of those policy considerations and the mechanics of implementing a co-ordinated response are best left to Parliament and the legislature. [2019 ONCA 264, 145 O.R. (3d) 161, at para. 150]

[ 280 ] However, while acknowledging "reading in an individualized assessment requirement would intrude on the legislative sphere" (para. 165), our colleague effectively does just that by granting an individual exemption to Mr. G. Our reading-in jurisprudence teaches us that "if it is not clear that Parliament would have passed the scheme with the modifications being considered by the court" (in this case, allowing courts to determine who should and should not be on the Christopher's Law registry), "then for the court to make these modifications would represent an inappropriate intrusion into the legislative sphere" (Ferguson, at para. 51 (see also para. 50); see also R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at paras. 74-75). Put differently, in attempting to provide an effective remedy, courts must not "leap into the kind of decisions and functions for which [their] design and expertise are manifestly unsuited" (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 57). This concern, and the related need to avoid dictating the content of new legislation, should govern our decisions on whether to issue an individual exemption (Roach, Constitutional Remedies, at §14.901).

[ 281 ] The legislature may, for example, conclude that only the Ontario Review Board has the requisite expertise to determine whether a person who has been absolutely discharged should be subject to Christopher's Law, and that courts are institutionally ill-suited to make any legitimate assessment of persons found NCRMD. Indeed, as J. Barrett and R. Shandler observe, "courts simply lack the medical expertise and institutional knowledge necessary" to assess the dangerousness of a person found NCRMD (Mental Disorder in Canadian Criminal Law (loose-leaf), at §11.1(a)(i)(B), citing R. v. Peckham (1994), 1994 3445 (ON CA), 93 C.C.C. (3d) 443 (Ont. C.A.), at para. 39; see also Ferguson (Ont. C.A.), at para. 11). This is particularly true in the case of sexual offences, given that, according to the evidence of the appellant's expert, Dr. Hanson, it often takes considerable time for sexual recidivism to manifest. Dr. Hanson, whose evidence was accepted by the application judge, testified that while most non-sexual recidivists will be identified within five years, new sexual recidivists are identified even after long periods, with studies showing that recidivism rates increase significantly after 10 years of being offence-free. This aligns with our collective knowledge that sexual offences, for various reasons, "can all too often be invisible to society" and remain undiscovered for years (Friesen, at para. 67).

[ 282 ] In light of these considerations, it seems to us profoundly ill-advised for this Court to short-circuit the legislative process and gift unto itself the ability to grant exemptions from the registry, even for Mr. G and even temporarily.

[ 283 ] To be clear, we do not say that Mr. G is likely to reoffend. Our point is simply that what Mr. G has shown is that persons found NCRMD who have been granted absolute discharges are entitled to "opportunities for exemption and removal" (Karakatsanis J.'s reasons, at para. 161), and that this Court cannot assume for itself the mantle of deciding what form these opportunities should take. In other words, the "benefit of [Mr. G's] success" (ibid., at para. 182) is that, like those who are found guilty of a sexual offence, he is entitled to the opportunity for exemption and removal from the registry, not that he must necessarily be removed.

[ 284 ] We are, further, in respectful disagreement with our colleague's rationale that judges "are well-suited to deciding and frequently charged with making determinations" such as the one she has made for Mr. G (para. 181). Our colleague points specifically to termination and exemption orders in respect of a person subject to SOIRA under ss. 490.016(1) and 490.023(2) of the Code (para. 181). Without deciding the issue, we note that appellate courts have concluded that the "very high" standard (R. v. Redhead, 2006 ABCA 84, 384 A.R. 206, at para. 43) to be met by an applicant seeking a termination or exemption order pursuant to these sections does not focus on risk. Instead, it focuses on those rare cases where the applicant's unique circumstances make the impact of registration on their liberty and privacy interests particularly severe and something more than "the normal inconvenience [someone] would incur in complying with the requirements of registration" (R. v. R.L., 2007 ONCA 347, at para. 7; see also paras. 2-6 and 8; see also R. v. Debidin (2008), 2008 ONCA 868, 94 O.R. (3d) 421, at paras. 32, 68, 70 and 80; Redhead, at paras. 3, 21, 31 and 37-43). The Court of Appeal for Ontario, for example, has concluded that "[i]t is error to enhance the impact on an offender or to dilute the public interest in registration on the basis of a diminished risk of recidivism. Indeed, it may be open to question whether accurate forecasts of the unlikelihood of recidivism can even be made [by courts]" (Debidin, at para. 70). Moreover, we find our colleague's reference to judicial discretion under SOIRA particularly curious, given that Parliament has amended s. 490.012(4) of the Code, thereby eliminating the possibility for a sentencing judge to refuse to issue an order to comply with the registry (see Protecting Victims from Sex Offenders Act, S.C. 2010, c. 17, at s. 5).

[ 285 ] The other two examples our colleague offers, discharges under s. 730 and record suspensions issued by the Parole Board of Canada (not courts) under s. 4.1(1) of the Criminal Records Act, R.S.C. 1985, c. C-47, do not — as she amply recognizes throughout her reasons — apply to or address the unique circumstances of persons found NCRMD. In any event, these are all modes of assessment that Parliament, not courts, has deemed appropriate.

[ 286 ] In conclusion, and with respect, there are unresolved contradictions in our colleague's reasoning. She accepts that this Court does not have the institutional competence to craft a new regime that would determine who should be on the registry and who should not, evidenced by her decision to issue a declaration of invalidity and not some other remedy. Yet, this decision is ultimately "at cross-purposes" (Hislop, at para. 92) with her conclusion that this Court, and thereby other courts, has the institutional competence to assess for itself the level of risk posed by persons found NCRMD and to issue corresponding exemptions.

[ 287 ] We add a second reason for not granting an individual exemption here, and generally against establishing a presumption in favour of doing so. Granting an individual exemption in this case, as in most cases, raises concerns of horizontal unfairness — that is, of treating the litigant better than others who are similarly situated. It is, in our respectful view, inappropriate to reward (even temporarily) only the litigant who was able to fund extensive constitutional litigation. There are undoubtedly other persons found NCRMD — perhaps those who are more vulnerable, or have committed less egregious offences than Mr. G — who are just as, if not more, in need of relief.

[ 288 ] Our colleague responds that "the claimant is not in the same position as others subject to the impugned law in a key respect: [he] has done the public interest a service by ensuring that an unconstitutional law is taken off the books" (para. 148). Respectfully, we are unconvinced that there exists any principled reason why an individual constitutional remedy ought to become a device to reward a successful litigant for "brav[ing] the storm of constitutional litigation" (para. 142). The fact that a litigant has prevailed will entitle them to judgment in their favour, and may also entitle them to an order for costs to indemnify them for expenses sustained (see British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at para. 21). But in a constitutional case involving the validity of a statute of general applicability, a litigant should not be entitled to a better or more immediate constitutional remedy than all other persons similarly situated merely because they brought the case. As this Court recognized in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, many members of our society, particularly the marginalized, are simply "unable to participate in a court challenge" for various reasons beyond cost, such as "risk of public exposure [and loss of privacy], fear for [their] personal safety, and the potential loss of social services, income assistance . . . and [future education or] employment opportunities" (paras. 6 and 71). Several of these factors, in addition to the "stigmatizing, prejudicial notions [that have] led to profound disadvantage for individuals living with mental illnesses" (Karakatsanis J.'s reasons, at para. 62), have no doubt encumbered persons found NCRMD from challenging Christopher's Law. Considered in this light, our colleague's justification for individual exemptions falls away.

[ 289 ] Further, it is worth considering what is to happen if a legislature ultimately decides to deem court-ordered exemptions inappropriate in its future regime. Here the risk of horizontal unfairness, which is associated with the rule of law, and of "creating further inequities" in the process (Miron v. Trudel, 1995 97 (SCC), [1995] 2 S.C.R. 418, at para. 179) looms large, since this leaves all other persons found NCRMD in an inferior position relative to Mr. G, who received a special court-ordered exemption from which they are precluded (see K. Roach, "Dialogic Judicial Review and its Critics" (2004), 23 S.C.L.R. (2d) 49, at p. 84).

[ 290 ] In our colleague's view, a claimant should only be denied an individual exemption for a "compelling reason" (para. 149). She offers two examples. First, an individual exemption should be denied only where it "would undermine the interest motivating the suspension in the first place" (para. 150). She says that, where a declaration is suspended to protect public safety, an individual exemption would be inappropriate if it would endanger public safety. But again, judges are not well-suited to conduct an individualized assessment as to whether an exemption would endanger public safety in cases such as this one, whether evidence of the individual claimant's situation is available or not.

[ 291 ] Secondly, our colleague says that an individual exemption should be denied where practical considerations such as "judicial economy" (para. 151) make it inappropriate to grant one. She offers the example of a large group of claimants, where it might be impractical or impossible to conduct the individualized assessments necessary to grant individual exemptions to each claimant. We agree that in cases involving a large number of claimants, a court might be disinclined to conduct multiple individual assessments. Indeed, such reticence might well be apt in cases involving a single claimant, where — as here — the Court lacks the competence to conduct even a single assessment. This suggests a converse danger, which is that a court confronted with multiple claimants could — as our colleague does in this case — simply skate over the assessments and grant exemptions all around. All that said, we observe that our colleague gives no guidance as to how the practical considerations she raises might, in a difficult case, be weighed against the supposed constitutional imperatives she identifies.

[ 292 ] Respectfully, we view our colleague's reasons on the matter of an individual exemption, considered in their totality, as internally inconsistent. First, they acknowledge that "tailored remedies should only be granted when a court can fairly conclude that the legislature would have enacted the law as it would be modified by the court" (para. 103), and that "although courts are capable of determining what the Constitution requires, they are not well-suited to making 'ad hoc choices from a variety of options'" (para. 115 (citation omitted)). Then, without any evidence of the legislature's intention and without any expert assessment of Mr. G, [14] they grant him an individual exemption. Our colleague's statements that "the legislature may choose from a range of policy options" (para. 70) or "any form of individualized assessment" (para. 162) are undermined by her later conjecture that it will be "highly unlikely" that Mr. G will be caught by the new legislation (para. 183). In this way, our colleague has usurped the legislative function and is legislating not just in effect, but in fact. In reality, amended legislation may capture Mr. G, or it may not — it is not the role of the judiciary to postulate on whether or how the legislature will respond.

[ 293 ] In the end, the proliferation of individual exemptions is simply the unfortunate upshot of failing to properly confine the use of suspended declarations (see Karakatsanis J.'s reasons, at para. 146: "it is a court's decision to grant a suspension that makes the individual remedy necessary"). We would reject our colleague's post-hoc solution that "[i]ndividual exemptions can temper any further disincentive caused by suspensions" (para. 148). Rather, the more appropriate response is to closely circumscribe the use of suspended declarations, as mandated by the Constitution. Once suspended declarations are properly limited to the exceptional situations where the rule of law is imperilled, the concern for providing an immediate remedy to the claimant fades.

V. Conclusion

[ 294 ] For all these reasons, we are unable to join our colleague's reasons, which to us represent an unbridled expansion of judicial discretion, with regard to issuing both suspended declarations and individual exemptions. We agree with our colleague that Christopher's Law infringes Mr. G's Charter right to equal treatment under the law, and that the declaration of invalidity was properly suspended. However, the suspension should be constitutionally grounded in the principle of the rule of law and the threat to public safety that would manifest otherwise. Consistent with Manitoba Reference, at p. 769, we would have invited submissions from the Attorney General of Ontario as to the minimum period necessary for Christopher's Law to be made constitutionally compliant. In the absence of that evidence, we would simply uphold the 12-month suspension of the declaration of invalidity. Consistent with the limited role of the judiciary vis-à-vis the legislature, we would not grant the respondent an individual exemption from that suspension. We would therefore allow the appeal in part.

Appeal dismissed with costs, Côté and Brown JJ. dissenting in part.

Solicitor for the appellant: Attorney General of Ontario, Toronto.

Solicitors for the respondent: Swadron Associates Barristers & Solicitors, Toronto.

Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Montréal.

Solicitors for the intervener the Canadian Civil Liberties Association: Presser Barristers, Toronto.

Solicitors for the intervener the Empowerment Council: Anita Szigeti Advocates, Toronto; Morphew Symes Menchynski Barristers, Toronto.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Embry Dann, Toronto; Weisberg Law, Toronto.

Solicitor for the intervener David Asper Centre for Constitutional Rights: University of Toronto, Toronto.

Solicitors for the intervener the Canadian Mental Health Association, Ontario: McCarthy Tétrault, Toronto.